ASYLUM CASE (COLOMBIA / PERU)

NOVEMBER 20, 1950

 FACTS

October 3rd, 1948 October 4th October 11th

A military rebellion American People's An order for the

broke out in Peru. Revolutionary opening of judicial

proceedings against
Alliance, was
Haya de la Torre and
charged with
others "in respect of
having organized
the crime of military
and directed the
rebellion with which
rebellion.
they are charged in
the 'denunciation
 FACTS

October 27 November 4 January 3, 1949

A Military Junta Issued a decree Haya de la Torre

made a coup providing for Courts- sought asylum in

d'état and seized Martialfor summary the Colombian

the supreme power. procedure in cases Embassy in Lima

of rebellion, sedition
and rioting, fixing
short time-limits and
severe punishment
without appeal.
"1 have the honour to inform Your Excellency, in
accordance with what is provided in Article 2,
paragraph 2 , of the Convention on Asylum signed
by Our two countries in the city of Havana in the year
1928, that Seiïor Victor Raul Haya de la Torre has
been given asylum at the seat of this mission as from
9 p.m. yesterday.

In view of the foregoing, and in view of the desire of

this Embassy that Sefior Haya de la Torre should leave
Peru as early as possible, I request Your Excellency to
be good enough to give orders for the requisite safe-
conduct to be issued, so that Sefior Haya de la Torre
"Pursuant to instructions received from
the Chancellery of my country, I have
the honour to inform Your Excellency
that the Government of Colombia, in
accordance with the right conferred
upon it by Article 2 of the Convention
on Political Asylum signed by our two
countries in the city of Montevideo on
December 26th, 1933, has qualified
Victor Raul Haya de la Torre as a
political refugee."
 PERUVIAN GOVERNMENT’S CONTENTIONS

Under Article 63 of the Rules of Court and in

the same decision, that the grant of asylum
by the Colombian Ambassador at Lima to
Victor Raul Haya de la Torre was made in
violation of Article 1, paragraph 1, and of
Article 2, paragraph 2, item I (inciso
primero), of the Convention on Asylum
signed in 1928, and that in any case the
maintenance of the asylum constitutes at
the present time a violation of that treaty."
 COLOMBIAN GOVERNMENT’S CONTENTIONS

The Republic of Colombia, That the Republic of Peru,

as the country granting as the territorial State, is
asylum, is competent to bound in the case now
qualify the offence for the before the Court, to give
purpose of the said asylum, the guarantees necessary
within the limits of the for the departure of M.
obligations resulting in Victor Raul Haya de la Torre
particular from the
from the country, with due
Bolivarian Agreement on
regard to the inviolability of
Extradition of July 18, 1911,
his person.
and the Convention on
COLOMBIAN GOVERNMENT’S CONTENTIONS

Its claim must be understood in the sense

that Colombia, as the State granting
asylum, is competent to qualify the nature
of the offense by a unilateral and definitive
decision binding on Peru. Colombia has
based this submission partly on rules
resulting from agreement, partly on an
alleged custom.
WON ASYLUM MAY
BE GRANTED

NO
Article 2, paragraph 1, of the Havana Convention

"Asylum granted to political offenders in

legations, warships, military camps or
military aircraft, shall be respected to the
extent in which allowed as a right or
through humanitarian toleration, by the
usages, the conventions or the laws of
the country xxx
The State of refuge shall not exercise asylum
to a larger extent than is warranted by its own
usages, conventions or laws and that the
asylum granted must be respected by the
territorial State only where such asylum would
be permitted according to the usages,
conventions or laws of the State of refuge.
 Article 38 of the Statute of the Court

International custom as evidence of a general

practice accepted as law.
 RULING

• The Party which relies on a custom of this

kind must prove that this custom is
established in such a manner that it has
become binding on the other Party.

1. A constant and uniform usage practiced by the States in

question, and

2. This usage is the expression of a right appertaining to the

State granting asylum and a duty incumbent on the
territorial State
Conventions and agreements do not contain any
provision concerning the alleged rule of unilateral
and definitive qualification

A large number of particular cases in which

diplomatic asylum was in fact granted and
respected. But it has not shown that the alleged right
of unilateral and definitive qualification was invoked.
The Court cannot therefore find that the
Colombian Government has proved the
existence of such a custom. But even if it
could be supposed that such a custom
existed between certain Latin-American
States only, it could not be invoked against
Peru.